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New Jersey’s reporter shield law, one of the nation’s most powerful, does not allow media defendants to keep all unpublished material out of discovery in invasion of privacy suits, a judge in Monmouth County has ruled. Superior Court Judge Louis Locascio’s Dec. 19 decision, in a case against The New York Times Co. that media lawyers are following anxiously, is the first since the 1977 revision of the reporter’s privilege to deny a news organization’s absolute protection against disclosure in a civil case. Joseph Kinsella, the plaintiff in the litigation, Kinsella v. Welch and NYT Television, Mon-L-1836-02, is suing The Times for invasion of privacy — namely, videotaping him in an emergency room — and he wants a copy of the tape to prove his case. Locascio ruled he could get it, despite the Times’ argument that the privilege, found in N.J.S.A. 2A:84A-21, is all encompassing in civil cases. Locascio ruled the right to privacy that Kinsella seeks to vindicate is a constitutional right that trumps the Times’ statutory rights under the shield law. He said the purpose of the shield law is to protect reporters from being forced to identify sources and surrender confidential information, thereby threatening the flow of information vital to a free society and protected by the First Amendment. The tape by itself, however, has no confidential significance, so it is not protected. “Because plaintiff’s motion does not seek confidential sources of information, just as New Jersey’s shield law must yield to a criminal defendant’s overriding constitutional right to the production of favorable evidence, so also does plaintiff’s same right to privacy, in this civil action, take precedence over defendants’ statutory right to the protection afforded by the newsperson’s privilege,” Locascio said. David McCraw, a Times in-house counsel, says he will appeal, and three other media lawyers predict he will win. NEWS OR INFOTAINMENT? In July 2001, Kinsella fell from the roof of a building he was spraying with insecticide and was taken to Jersey Shore Medical Center with life-threatening injuries. By happenstance, Times subsidiary NYT Television was in the emergency room at the hospital’s invitation, shooting footage for The Learning Channel’s show “Trauma, Life in the ER.” Cameras captured Kinsella’s treatment and interviewed his doctors, and the next day he signed an appearance consent and release giving the Times the right to air the footage. The suit started as a personal injury complaint against Stuart Welch, the owner of the Highland, N.J., building where the accident occurred. Kinsella’s lawyer, Gerald Clark, an associate in Lynch Martin’s Shrewsbury, N.J., office, added the Times and its film unit after they declined an informal request for the video, which was never aired. The complaint says Kinsella signed the appearance waiver while he was too disoriented to give an informed consent and that the filming interfered with the privacy to which any hospital patient is entitled under state law. Clark wants the tape in discovery because it would be the best possible evidence of the intrusion claim. In a threshold effort, Clark argued the shield law was irrelevant to the case because “Trauma, Life in the ER” was entertainment. But Locascio ruled that the show was news and that an inquiry into the privilege’s effect was necessary. NEWSGATHERING AS TORT The central issue then became whether privacy rights rose to the level of a constitutional protection that could trump the newsperson’s statutory privilege. NYT’s outside lawyer, Peter Banta of Hackensack, N.J.’s Winne, Banta, Rizzi, Hetherington & Basralian, argued that privacy rights in the state and federal constitutions guarantee protections against state intrusion and that protections against non-state actions exist only in the common law. But Locascio disagreed, citing penumbra cases such as Roe v. Wade and Griswold v. Connecticut. Closer to the issue at hand, he quoted State v. Cantor, 221 N. J. Super 219 (App. Div. 1987), in which an appeals court ruled that a reporter who impersonated a county official to obtain information was not entitled to the newsperson’s privilege. Repeating a quote from Cantor, Locascio wrote, “The First Amendment has never been construed to provide immunity from either tortious or criminal conduct committed in the course of newsgathering.” The leading New Jersey civil case on the privilege is Maressa v. New Jersey Monthly, 89 N.J. 176 (1982) cert denied, 456 211 (1982), in which the court upheld the right of a magazine to withhold material in a libel case. But Locascio said Kinsella’s motion is different because he is not seeking confidential material. It’s more like State v. Salsbury, 129 Idaho 307 (1996), in which a television station was required to surrender a tape deemed nonconfidential. Times lawyer McCraw says Locascio’s reliance on an Idaho case for the notion that nonconfidential material is not privileged is one of the flaws in the opinion. “The New Jersey statute is broader than in other states,” and is even broader when combined with cases like Maressa, he adds. FROM COMMON TO CONSTITUTIONAL John Connell, a media law partner at Haddonfield, N.J.’s Archer & Greiner, says “it’s an incredible opinion that elevates the common-law right of privacy to some sort of constitutional level, which is wrong. That’s settled law and the court does an end run around it.” “The New Jersey shield law is recognized as unique in the nation,” he says. “It’s all but absolute. You don’t revert to some authority out in Pocatello to interpret it.” He and Edward Rogers, a partner in Philadelphia’s Ballard Spahr Andrews & Ingersoll, says the newspaper privilege has been trumped in New Jersey only by criminal defendants’ constitutional rights. Kinsella’s claim “is not a constitutional claim, it’s a common-law tort claim,” Rogers says. He also says Locascio erred by making a distinction between confidential data and sources and nonconfidential information. Both are covered by the shield law, he says. As a practical matter, requiring newspapers to divulge nonconfidential information would lead to the flooding of newsrooms with subpoenas, undercut editorial discretion and, in the end, “there will be less creative freedom,” Rogers says. Arlene Turinchak, an associate at Somerset, N.J.’s McGimpsey & Cafferty, which represents the New Jersey Press Association, calls the decision “an unprecedented narrowing of the shield law.” In the case of In Re Schuman, 114 N.J. 14, for example, the New Jersey Supreme Court allowed a newspaper to withhold the tape of a criminal’s confession to a reporter, which was published in the paper, she says. Plaintiffs’ lawyer Clark, meanwhile, says he’s not disturbed that Locascio ruled against him and said “Trauma, Life in the ER” was news. “It doesn’t make a difference to us because he reached the right result.” He says Locascio was correct in saying the Constitution protected Kinsella’s privacy. “There’s always a cry of freedom of the press,” he says. In this case, though, he says, the freedom that needs to be protected was Kinsella’s right to recuperate in a hospital without having a film crew interfere with his private treatment.

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